Delamater v. Russell

Parker, Justice. Section 288 of the code provides that an execution may be issued against the person of the judgment debtor, if the action be one in which the defendant might have been arrested, as provided in section 179 and section 181. Section 179 authorizes the arrest of a defendant “ in an action for the recovery of damages, on a cause of action not arising out of contract, where the defendant is not a resident of this state, or is about to remove therefrom, or where the action is for an injury to person or character, or for injuring or for wrongfully taking, detaining, or converting propertyT [235] It is under this clause of the 179th section that the authority to imprison the judgment debtor in this action is claimed. I think the act complained of was an injury to the person of the plaintiff. It was an invasion of his personal rights. The action was brought for depriving the plaintiff of the “ comfort, society, fellowship, aid and assistance ” of the wife. Such was the language of the declaration under the former remedy by special action on the case. (2 Ch. Pl. 265.) This is the substantial injury still. The form of action only is changed. Bights of persons are divided into absolute and relative. Criminal conversation is classed under actions for injuries to the latter. (1 Ch. Pl. 137.) This classification is related by all our elementary writers. (2 Kent’s Com. 129; 3 Black. Com. 138.) Blackstone says (3 Black. Com. 139,) “injuries that may be offered to a person considered as husband, are principally these: abduction, or taking away a man’s wife; adultery, or criminal conversation with her; and beating or otherwise abusing her.” Slander or libel is an infringement of the absolute rights of persons and I have no doubt a judgment debtor would have been hable to imprisonment in these actions, if injuries to'“ character” had not been particularly mentioned in the statute. (2 Kent’s Com. 16 ; 1 Chitty Pl. 137.) It is not supposed that it was the intention of the Legislature to excuse from imprisonment judgment debtors in actions for Grim, con., seduction of a daughter, or beating of a servant; and subject defendants to imprisonment in ah other actions for wrongs: nor does the statute in my opinion demand any such construction. On the contrary, I think the language employed is used in its established legal signification, and, though it might have been more exphcit, covers the class of actions in question. The motion must be denied, but the question being a new one, without costs.